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The Church of Scientology petitions the California State Supreme Court in an appeal of Judge John P. Doyle's denial of Scienotology's motion for summary judgment.
The Church of Scientology petitions the California State Supreme Court in an appeal of Judge John P. Doyle's denial of Scienotology's motion for summary judgment.
The Church of Scientology petitions the California State Supreme Court in an appeal of Judge John P. Doyle's denial of Scienotology's motion for summary judgment.
S 23 6 1 "4 FILED WITH PERMISSION
SUPREME SOURT COPY “FILED.
IN THE SUPREME COURT
AUG -2 2016
OF THE STATE OF CALIFORNIA
Frank A. McGuire Clerk
CHURCH OF SCIENTOLOGY INTERNATIONAL, a corporate entity PUY
Petitioner,
¥ CRC
SUPERIOR COURT FOR LOS ANGELES COUNTY 8.25(b},
Respondent.
LaurA ANN DECRESCENZO
Real Party in Interest
On Writ Petition From The Superior Court For the State of California For
the County of Los Angeles, Case No. BC 411018
Hon. John P. Doyle
Court of Appeal, Second District, D
No. B275249
PETITION FOR REVIEW
KENDALL BRILL & KELLY LLP RABINOWITZ, BOUDIN, STANDARD,
Bert H. Deixler (70614) KRINSKY & LIEBERMAN, LLP
bdeixler@kbkfirm.com Eric M. Lieberman (pro hac vice)
Nicholas F. Daum (236155) 45 Broadway, Suite 1700
ndaum@kbkfirm.com New York, NY 10006
10100 Santa Monica Blvd., Suite 1725 Telephone: 212.254.1111
Los Angeles, California 90067 Facsimile: 212.674.4614
Telephone: 310.556.2700
Facsimil 310.556.2705 Attorneys for Defendant and Petitioner
Church of Scientology International
2355932Ss
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
on
CHURCH OF SCIENTOLOGY INTERNATIONAL, a corporate entity
Petitioner,
v.
SUPERIOR COURT FOR Los. ANGELES COUNTY
Respondent.
‘Laura ANN DECRESCENZO
Real Party in Interest
On Writ Petition From The Superior Court For the State of California For
the County of Los Angeles, Case No. BC 411018
Hon. John P. Doyle
Court of Appeal, Second District, Division Three
No. B275249
PETITION FOR REVIEW
—
KENDALL BRILL & KELLY LLP RABINOWITZ, BOUDIN, STANDARD,
Bert H. Deixler (70614) KRINSKY & LIEBERMAN, LLP
bdeixler@kbkfirm.com Eric M. Lieberman (pro hac vice)
Nicholas F. Daum (236155) 45 Broadway, Suite 1700
ndaum(@kbkfirm.com New York, NY 10006
10100 Santa Monica Blvd., Suite 1725 Telephone: 212.254.1111
Los Angeles, California 90067 Facsimile: 212.674.4614
Telephone: 310.556.2700
Facsimile: 310.556.2705, Attorneys for Defendant and Petitioner
Church of Scientology International
2855932CONCLUSION...
2355932
QUESTIONS PRESENTED
INTRODUCTION ..
STATEMENT OF THE CASE
-
REASONS WHY REVIEW IS NECESSARY ..
se
Poa
TABLE OF CONTENTS
The Scientology Religion And Its Religious Order.
The Plaintiff's Claims...
The Church’s Motion For Summary Judgment..
The Disqualification
The Church’s Writ Petitio
Review Is Necessary To Clarify The Effect Of A
Belated Ethical Disclosure By A Judicial Officer On
Prior Rulings...
Review Is Necessary To Clarify That Summary
Judgment Not Only is Available to Determine
Application of the Ministerial Exception, But That It Is
A Preferred Procedure
1. The Development Of The Ministerial Exception
Doctrine
2. The Doctrine Applies Broadly To Church
Officials
3. The Doctrine Applies Here...TABLE OF AUTHORITIES
Page(s)
Cases
Alcazar v. Corporation of the Catholic Archbishop of Seattle,
598 F.3d 668 (9th Cir. 2010)... .24, 25, 26, 27
Alcazar v. Corporation of the Catholic Archbishop of Seattle,
627 F.3d 1288 (9th Cir. 2010). 24, 28
Alicea-Hernandez v. Catholic Bishop of Chicago,
320 F.3d 698 (7th Cir. 2003),
Bollard v. California Province of the Society of Jesus,
196 F.3d 940 (9th Cir. 1999).
NLRB v: Catholic Bishop of Chicago,
440 US. 490 (1979)...
Catholic Charities of Sacramento, Inc. v. Superior Court,
32 Cal. 4th 527 (2004)...
Christie v. City of El Centro,
135 Cal. App.4th 767 (2006).
Claire Headley v. Church of Scientology Intl.,
2010 WL 3184389 (C.D. Cal. 2010).
Giometti v. Etienne,
219 Cal. 687 (1934)...
Gunn v. Mariners Church,
167 Cal.App.4th 206 (2008)...
Headley v. Church of Scientology Intl,
687 F.3d 1173 (9th Cir. 2012)...
Hernandez v. Vitamin Shoppe Indus., Inc.,
174 Cal.App.4th 1441 (2009).
Higgins v. Maher,
210 Cal. App.3d 1168 (1989).
2855552 2Hope International University v. Superior Court,
119 Cal.App.4th 719 (2004)
Hosanna-Tabor Evangelical Lutheran Church v. EEOC,
132 S. Ct. 694 (U.S. 2012)..
In Bates v. Rubio’s Restaurants, Inc.,
179 Cal.App.4th 1125 (2009).
Kedroff v. St. Nicholas Cathedral,
344 USS, 94 (1952)...
Marc Headley, v. Church of Scientology Intl.,
2010 WL 3157064
Maxwell v. Brougher,
99 Cal. App. 2d 824 (1950)...
Presbyterian Church v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church,
393 U.S. 440 (1969).
Roman Catholic Archbishop of Los Angeles v. Superior
Court,
131 Cal.App.4th 417 (2005)..
EEOC v. Roman Catholic Diocese of Raleigh,
213 F.3d 795 (4th Cir. 2000).
Ross v. Metro. Church of God,
471 F. Supp. 2d 1306 (N.D. Ga. 2007)
Rossco Holdings Inc. v. Bank of America,
149 Cal.App.4th 1353 (2007).
Rweyemamu v. Cote,
520 F.3d 198 (2d Cir. 2008).
Schleicher v. Salvation Army,
518 F.3d 472 (7th Cir. 2008)..
Schmoll v. Chapman Univ.,
70 Cal.App.4th 1434 (1999)...
Serbian Eastern Orthodox Diocese v. Milivojevich,
426 US. 696 (1976)...
2855932 3Shulman v. Group W Prods., Ine.,
18 Cal. 4th 200 (1998).
Silo v. CHW Med. Found.,
27 Cal. 4th 1097 (2002)
Smith v. Raleigh Dist. of the North Carolina Conference of
the United Methodist Church,
63 F. Supp. 2d 694 (E.D.N.C. 1999)...
Tatum v. 8. Pac. Co.,
250 Cal.App.2d 40 (1967)..
18,19
Urias v. Harris Farms, Ine.,
234 Cal.App.3d 415 (1991)...
Watson v, Jones,
80 U.S. (13 Wall.) 679 (1871)...
Werft v. Desert Sw. Annual Conference,
377 F.3d 1099 (9th Cir. 2004).
Statutes
Code of Civil Procedure
Section 170.1
Section 170.3(a)(4)
Section 170.3(d)..
Constitutional Provisions
United States Constitution First Amendment
-passim
2855932 4sine sinsdaatennandi aise
I. QUESTIONS PRESENTED
This petition, unusually, raises both an important question of judicial
administration and a significant issue concerning the role of the trial judge
and the jury in cases involving the constitutional rights of religious
organizations. The two questions at issue are the following:
1) Where an order denying a motion for summary judgment is
issued by a judicial officer who was disqualified at the time of the order for
reasons not yet apparent to the officer but which emerged shortly after he
issued the order, causing him to disqualify himself from any further
involvement in the case, was he required to void his prior order denying the
motion for summary judgment because he was disqualified at the time he
issued it?
2) May atrial court deny a motion for summary judgment that is
based in major part on the First Amendment religion clauses and the
‘mi
isterial exception” that derives from those clauses merely on the
ground that in certain situations a party’s invocation of the ministerial
exception may be a subterfuge and on the principle that summary judgment
is a highly disfavored procedure to be granted “once every three leap
years,” where the trial court does not even address the judicially recognized
crite
for applying the ministerial exception or whether the undisputed
facts fall clearly within those criteria?
2assen2 1Either question is of great enough significance to warrant review by
this Court on its own. Both questions are squarely raised in this case.
I. INTRODUCTION
Below, a writ of mandate was not only appropriate but necessary, for
two separate reasons. Both reasons are of great significance for the
jurisprudence of this State, and unlikely to be raised in appeals from final
judgment. Yet the Court of Appeal did not act. This is the rare denial of a
writ of mandate that demands intervention by this Court.
First, the petition involves an order issued by a disqualified judicial
officer. Days after entering an order denying summary judgment, the
Superior Court judge disclosed a potentially-disqualifying family
relationship under Canon 3(B)(2) of the Code of Judicial Ethics. The
family relationship was known to the judge before he issued the summary
judgment order. It was not known to the parties. After receiving the trial
judge’s disclosure, Petitioner explained that at least one member of the
judge's family was a planned trial witness. he trial judge then disqualified
himself from the action. But in so doing he refused to void his prior
summary judgment order. He did so even though if the required judicial
disclosure had been made earlier (which it should have been) the grounds
for disqualification would have been clear, causing both sides to seek and
the judge to order recusal before hearing and deciding the motion, That
was error that cannot be corrected after final judgment. Orders on judicial
2885032 2disqualification are, by statute, expressly reviewable only by writ, see Code
of Civil Procedure Section 170.3(d). The court of appeals refusal to
consider the question cries out for review by this Court
Second, the petition seeks review of an order which infringes upon a
core protection guaranteed by the First Amendment to the United States
Constitution. That protection precludes interference by secular courts on
issues of religious doctri
ie and the condition of employment of ministers.
‘The purpose of the immunity is precisely to avoid judicial interference with
religion—including the interference caused by the process of enduring a
trial on the merits. Thus, an improper denial of that immunity cannot be
corrected after trial and final judgment.
Because of the very nature of the exception, it.
entails an immunity on the part of a religious
institution from the intrusive examination into
religious doctrine inherent in the suit. Such an
immunity implicates a somewhat stronger interest
than the more typical writ situation where a litigant
is simply asserting the right to win at the summary
judgment level. . . . The very process of review
itself threatens to entangle the court in a sectarian
controversy.
Hope International University v. Superior Court, 119 Cal.Appth, 719,
730 (2004) (emphasis added).
The Superior Court abdicated its judicial duty to adjudicate at all
whether the immunity provided by the ministerial exception applied to the
claims here, holding that the question by its very nature could not be
255932 3|
resolved by summary judgment. This was fundamental error going to the
power of the court to subject the church to trial by jury. Determination of
the applicability of the ministerial exception is a question of law to be
decided by the court. See Hosanna-Tabor Evangelical Lutheran Church v.
EEOC, 132 S. Ct. 694 (U.S. 2012) (holding ministerial privilege applied as
a matter of law); Smith v. Raleigh Dist. of the North Carolina Conference
of the United Methodist Church, 63 F. Supp. 2d 694, 706 (E.D.N.C. 1999)
(“The applicability of the ministerial exception is a question of law for the
court.”), Summary judgment is a preferred method of adjudicating such
questions. Hope International University v. Superior Court.
Because the issues go to the power and duties of a trial court in the
exercise of its judicial duties, and because the decisions below are not in
accord with clearly established judicial precedent, this Court should
exercise its power to review both questions presented.
Il. STATEMENT OF THE CASE
A. The Scientology Religion And Its Religious Order
The Scientology religion is based upon the research, writings and
lectures of its Founder, L. Ron Hubbard. The basic tenet of Scientology is
that humans are immortal spiritual beings, called “thetans,” who have lived
many lifetimes and have the potential of infinite survival. Only through
exploration of his/her past, through participation in Scientology practices,
2855932 4can a thetan overcome the negative experiences that reduce his/her inherent
spiritual ability.
Scientologists believe that the principle of existence is
compartmented into eight “dynamics”: individual; family; groups;
mankind; living things; material things; spirituality; and infinity, which, in
plaintifi’'s words, is “considered the God dynamic.” A thetan’s spiritual
advance in Scientology is across all dynamics, as a necessary component to
spiritual salvation, A Scientologist is expected to act in a manner that
achieves “the greatest good for the greatest number of dynamics,” a core
belief of the religion that plaintiff always tried to follow.
Scientology’s religious services include “training” and “auditing.”
‘Training involves the study of the Scripture. Auditing is ministered in
confidential one-on-one sessions between a specially trained individual
called an auditor and a parishioner. ‘The auditor uses a device called an “E-
Meter” to assist in locating and removing barriers to spiritual progress from
a person’s past and current lives.
Ethics is Scientology's religious moral code. Past or current
unethical acts interfere with one’s spiritual progress. Scientology ethics
counseling includes confessional through which a parishioner confronts
his ethical transgressions, not only in his current life but in “past lives,”
thereby overcoming that barrier to spiritual progress. Some of these
2355932 5confessionals are called “sec checks.” They are an essential part of the
religious practices of Scientology.
Some Scientologists choose to devote their lives to work for their
religion full time, in the same manner as monks, nuns, priests, and other
clergy. They do so by committing to join Scientology's religious order,
known as the “Sea Organization” or “Sea Org.” To join the Sea Org, a
Scientologist must undertake extensive training and study, pass a fitness
examination, and receive certification. Sea Org members sign a symbolic
commitment of one billion years, reflecting their dedication to service in
furtherance of the religion and the salvation of humanity and their
awareness of themselves as immortal spiritual beings.
Potential Sea Org members are told they will be required to work long
hours, they will be subject to lifestyle and disciplinary restrictions on their
Movements and contacts, and they may be assigned anywhere in the world to
further the goals of the religion. See Headley v. Church of Scientology Intl,
687 F.3d 1173, 1174-75 (9th Cir. 2012) (“The Sea Ore’s lifestyle
constraints include strict policies on outside communications, marriage, and
children. Sea Org members’ mail is censored and phone calls are monitored
as part of ministry discipline and policy”). Sea Org members serve without
expectation of compensation. They share tradition and lifestyle. They wear
uniforms when on duty and have a merit-based maritime rank and rating
system and etiquette. They live communally and eat in common dining
2855932 6halls. The Church provides them with all living necessities and a small
weekly allowance for personal incidentals.
Sea Org members are held to the highest ethical standards and agree to
submit to the discipline of the Sea Org. See Headley v. Church of
Scientology Intl, 687 F.3d at 1175 (“Sea Org members learn that strict
discipline is central to preserving the integrity of Scientology's ministry. If
a member fails to meet Scientology's ethical standards, he may be
disciplined”). Ifa Sea Org member is found to have committed serious ethical
violations, he/she may be asked to participate in a program of spiritual
rehabilitation, called the Rehabilitation Project Force (“RPF”). In accepting
participation in the RPF, Sea Org members agree to undergo close supervision
of their activities, to remain in relative isolation from other Sea Org members,
and to have limited contact with others while undergoing their spiritual
rehabilitation, They engage in religious study and auditing and physical labor.
After one “graduates” from the RPE, he/she will resume a Sea Org position. If
a Sea Org member chooses not to participate in the RPF, he/she will be
dismissed from the Sea Org and from all staff positions. Such lifestyle
restrictions and ecclesiastical discipline are common to religious orders.
A Sea Org member “may formally withdraw his vows and leave the
ministry through a process called ‘routing out,”” Headley v. Church of
Scientology Intl, 687 F.3d at 1175, which often includes participating in
Scientology ethics programs and the performance of manual chores. Ifa
2358932 7Sea Org member chooses to leave without routing out, other Sea Org
members may attempt to persuade her to stay or to return; such efforts
reflect the belief among Sea Org members that they are attempting to
achieve the salvation of the individual. See Headley, 687 F.3d at 1175. A
person who insists on leaving or refuses to return, without routing out, may
be subject to ecclesiastical discipline, including, but not necessarily, being
declared a “suppressive person,” which is the functional equivalent of being
shunned or excommunicated. [d. “Such practices are also typical of
religious orders.” Id.
B. The Plaintiff's Claims
‘The action was brought by Plaintiff-Real Party in Interest Laura
DeCrescenzo (“DeCrescenzo”), a former member of the Scientology
religion. DeCrescenzo belonged to the Sea Org. The defendants are
Petitioner-Defendant Church of Scientology International (“Church”) and
another Scientology-affiliated organization, co-defendant Religious
Technology Center (“RTC”). DeCrescenzo alleged that as a member of the
Sea Org she was subject to indoctrination and psychological pressure to
have an abortion so she could continue to serve the religious order. She
claimed that she participated in the RPF against her will. She claimed that
she was required to undergo allegedly invasive confessional practices
known as “sec checks.” And she claimed she was required, over the more
than 10-year period in which she was a member of the religious order, to
2855932 8perform a heavy work schedule without being paid minimum wages or
overtime.
In fact, as the Church demonstrated, DeCrescenzo was a committed
Scientologist and member of a religious order, and willingly took all of the
actions as to which she now complains—including her abortion, her time in
the RPF, her work duties, and her participations in “sec checks"—as part of
her religious practice and without force. DeCrescenzo has now renounced
her former religion and claimed that she was “brainwashed” into her former
religious beliefs, but there is no evidence whatsoever that DeCrescenzo at
the time of her membership in the religious order was forced to do anything
against her will. To the contrary, the record is clear that her actions
stemmed from religious conviction, albeit religious conviction which she
has now renounced.
For example, DeCrescenzo’s supposedly “forced abortion” was in
fact indisputably a decision which she made, after consulting with her
husband, to obtain an abortion for religious reasons. According to Church
religious policy, a Sea Org member may not remain in the Order if he or
she has a young child. The policy is based on the fact, as DeCrescenzo
testified, that Sea Org members would be unable to carry out their
responsibilities, which involve total commitment to one’s religious work,
long hours and strict discipline, while also taking responsible care of young
children. When DeCrescenzo became pregnant, her husband, who was alsoa Sea Org member, told her that he wanted her to obtain an abortion and did
not want to leave the Sea Org. DeCrescenzo also testified that church
officials tried to convince her to have an abortion because she and her
husband had important religious responsibilities and it was the “greatest
good for the greatest number of dynamics” for them to remain in the Sea
Org, which they could not do if they had to care for a young child.
DeCrescenzo testified that she was convinced to remain in the Sea
Org, and to obtain an abortion to allow her to do so. DeCrescenzo
acknowledged specifically that “[nJo one physically forced me to have an
abortion” and that she ultimately was “convinced” to have an abortion,
because it was “the greatest good for the greatest number of dynamics” and
because she wanted to stay with her husband, There is no evidence
whatsoever, and DeCrescenzo has never claimed, that anyone physically
forced her to obtain an abortion. Nor (aside from the requirement that she
leave the Sea Org if she attempted to raise a baby or young child) was there
any evidence of any threat of negative practical consequence being made to
her if she failed to obtain the abortion. The claim for “forced abortion”
rests entirely on DeCrescenzo’s role as a Sea Org member and minister,
and her being persuaded to have an abortion for the reasons identified
above.
Similarly, DeCrescenzo testified explicitly that she joined the RPF
for religious reasons and was convi
ced to do so based upon her religious
2asson2 10beliefS. As she later posted on the Internet after having left the Church in
2004 and become a critic of Scientology: “I didn’t feel like a ‘victim’.
And I still do not feel like a victim. Those things happened. I was part of it.
J thought it was ‘all ok” and the ‘greatest good’. | am not going to pretend
that I had nothing to do with it, no one held a gun to my head forcing me to
do things.”
Indeed, at her deposition, DeCrescenzo explicitly testified that while
she was in the Sea Org and for over four years after she left, she never
thought she had been compelled to go to or to remain in the RPF against
her will:
Q You didn’t tel them [her parents] that you had been held against
your will at the RPE?
A I did not tell them that. I didn’t feel that way at that time.
Q You didn’t -- as of 2004, 2005, [after she left the Church] you
didn't feel you had been held against your will?
A No.
Q You believed as of 2004, 2005, you volunteered to go to the
RPF; correct?
A believed that I thought that it was the greatest good for me to do
it at that point.
Q And you later changed your mind about it?
A Yes.
Q Okay. And when did you change your mind?
A_ In 2008 when I started opening my eyes to things that I hadn't
looked at before.
llSo too with DeCrescenzo’s work assignments and “sec check:
which she specifically testified, at length, were part of her then-sincere
commitment to service as a member of the religious order.
C. The Church’s Motion For Summary Judgment
The Church filed a motion for summary judgment. It demonstrated
by uncontroverted facts that the positions that DeCrescenzo held and the
responsibilities she exercised were those of a “minister” within the meaning
of the ministerial exception, which provides broad constitutional immunity
toa church faced with allegations such as those DeCrescenzo interposed.
See, e.g., Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 8.
Ct. 694 (2012); Hope International University v. Superior Court, 119
Cal.App.4th 719 (2004).!
' The courts of this State have recognized that the ministerial exception bars
. judicial interference with discipline or administration by churches of their
clergy.
The teaching of this line of authority is that secular courts will
not attempt to right wrongs related to the . . . discipline or
administration of clergy. Implicit in this statement of the rule is
the acknowledgement that such wrongs may exist, that they may
be severe, and that the administration of the church itself may
be inadequate to provide a remedy. The preservation of the free
exercise of religion is deemed so important a principle as to
overshadow the inequities which may result from its liberal
application. In our society, jealous as it is of separation of
church and state, one who enters the clergy forfeits the
protection of the civil authorities in terms of job rights.
Higgins v. Maher, 210 Cal.App.3d 1168, 1175 (1989). accord Gunn v.
Mariners Church, 167 Cal.Appth 206, 217 (2008) (following Higgins);
2855932 12‘The Church showed in its motion that the First Amendment and the
ministerial exception meant that none of DeCrescenzo’s claims could be
properly resolved by, or even put before, a secular trial court. The Church
demonstrated that DeCrescenzo had agreed to undergo her abortion for
religious reasons, -e., so she could remain a member of the order and
continue her religious work. It showed that she repeatedly had stated
publicly and testified that she participated in the RPF, “sec checks,” and
other Sea Org practices for religious reasons (and never against her will, as
she was a committed member of the religion). And it showed that the
ministerial exception barred judicial interference with the terms and
conditions of her religious employment and discipline.
The Superior Court (Doyle, J.) denied the motion on April 27, 2016,
refusing to adjudicate whether the immunity provided by the ministerial
exception applied to DeCrescenzo and her claims. Rather the Court stated
that since the ministerial exception might not apply to certain torts and
since the claim by a church that an individual is a minister within the
meaning of the exception could be examined by a court for alleged
Mare Headley, v. Church of Scientology Intl, 2010 WL 3157064 at *6;
Claire Headley v. Church of Scientology Intl., 2010 WL 3184389 at *5-6
(C.D. Cal. 2010) (summary judgment dismissing claims based on
allegations including “forced abortion,” restrictions on leaving, censorship,
discipline and manual labor in the Sea Org).
2855932 13“subterfuge,” the question could not be resolved by summary judgment.
Put simply, the Superior Court held that because there potentially might be
an issue of disputed material fact, that mere possibility forecloses summary
judgment without the need to determine whether there indeed was such a
‘material disputed issue on the record before it, Consistent with its legally
wrong understanding of summary judgment procedures, particularly in the
First Amendment context, the Superior Court also found, contrary to law,
that summary judgment on similar issues was a disfavored remedy, to be
issued (in the Court’s words) “once every three leap years.” Review by this
Court is necessary to clarify the proper standards for summary judgment in
cases such as this.
D. ‘The Disqualification
Nine business days after ruling on summary judgment, on May 10,
2016, Judge Doyle of the Superior Court issued a six-page minute order,
containing a disclosure under Canon 3(E)(2) of the Code of Judicial Ethies.
In the disclosure, Judge Doyle explained that he had a first cousin who is a
long-time Scientology minister.
The disclosure explained that if any members of his family were
witnesses or potential witnesses, Judge Doyle would likely be forced to
° The Court, of course, need not decide the ultimate issue of whether
summary judgment should have been granted, but instead could choose to
remand after clarifying the proper standards and analysis to be applied.
28590
4disqualify himself. This disclosure was the first time the Church learned of
any family relationship between Judge Doyle and Scientology or the Sea
Org. In fact, the Church shall call at trial one, and possibly two other, of
the Judge’s family members; the one had worked closely with DeCrescenzo
in the Sea Org.
This disclosure was the first time that the Church’s staff responsible
for the handling of the case, or its attorneys, knew of any family connection
between Judge Doyle and Scientology.
On May 16, two business days after receiving the disclosure, the
Church submitted a verified statement to the Court in response to the
disclosure, explaining that at least one family member of the judge was a
likely trial witness,
On May 18, 2016, Judge Doyle disqualified himself from the action.
_ Apparently, the basis for disqualification was Judge Doyle's belief that his
relationship with a potential family-member witness created a potential
impression of bias.
In so doing, however, Judge Doyle expressly declined to void the
summary judgment ruling. Judge Doyle's minute order stated that “under
the circumstances of this particular case ... the disqualification occurred at
the time the Court was first made aware of the relevant facts on May 16,
2016, to wit: that certain family members of the judge were anticipated or
285593.2 15potential witnesses. Accordingly, the Court declines to vacate any of its
prior rulings, including its April 27, 2016 ruling.”
E. The Church’s Writ Petition
On June 2, 2016, the Church filed a petition for writ of mandate,
seeking review of both the summary judgment ruling and the
disqualification order. On July 13, 2016, the Court of Appeal (Second
District, Division Three) summarily denied the petition. See Appendix, Ex.
A. This petition for review followed.
TV. REASONS WHY REVIEW IS NECESSARY
REASONS WHY REVIEW IS NECESSARY
A. Review Is Necessary To Clarify The Effect Of A Belated
Ethical Disclosure By A Judicial Officer On Prior Rulings
An order issued by a disqualified judge is void. Rossco, 149
Cal.App.4th at 1361-1363; see Christie, 135 Cal.App.4th at 776,
Disqualification occurs when the facts giving rise to the disqualification
occur. Jd. It does not occur when a judicial officer issues an order of
disqualification. Jd. Nor, critically here, does it occur when a judge
realizes the significance of previously-existing facts requiring
disqualification. Jd, Nor does disqualification require a showing of actual
bias. Id.
Judges are also required to make disclosures not only of actual
information revealing a disqualifying conflict, but of information
Potentially relevant to judicial disqualification, Canon 3(E)(2)(a) of the
2855932, 16Code of Judicial Ethics provides that “A [trial] judge shall disclose
information that is reasonably relevant to the question of disqualification
under Code of Civil Procedure section 170.1, even if the Judge believes
there is no actual basis for disqualification.”
This case involves the intersection of these two rules. Here, the trial
court issued a mandatory disclosure after issuing a major ruling. The
disclosure then revealed to the trial judge the existence of a disqualifying
conflict, But the only reason the disqualifying conflict was not known to
the trial court earlier was the trial court’s failure to issue the mandatory
disclosure.
In deeming the summary judgment order non-void, Judge Doyle
relied upon Code of Civil Procedure Section 170.3(a)(4). That provision
states that “If grounds for disqualification are first learned of or arise after
the judge has made one or more rulings in a proceeding, but before the
Judge has completed judicial action in a proceeding, the judge shall, unless
the disqualification be waived, disqualify himself or herself, but in the
absence of good cause the rulings he or she has made up to that time shall
not be set aside by the judge who replaces the disqualified
judge.”(emphasis added).
However, for reasons made clear in a long series of California
Judicial rulings, that provision has no application here, and this Court
should so explain,
2835032 17For example, in Giomeuti vy. Etienne, 219 Cal. 687, 689 (1934), a
case on all fours with this one, a judge was part of a panel that signed an
order. Subsequently to signing the judge learned that he was a relative of
one of the attomeys representing a party. This Court held this sufficient to
make the order “void” even. though the judge had not recognized the
relationship at the time he signed the order, The judge was, in effect,
charged with constructive knowledge of the disqualifying relationship, even
though the judge did not have actual knowledge of it.
Lower courts (but not the Superior Court or Court of Appeal here)
have often agreed. In Urias v. Harris Farms, Inc., 234 Cal.App.3d 415,
419 (1991), a judge who apparently did not know his former law firm
Tepresented the defendant in an action as to which he entered summary
Judgment was later deemed to have been disqualified; the summary
Judgment ruling was deemed void, fa. at 423-24. In Tatum v. S. Pac. Co.,
250 Cal.App.2d 40, 41-42 (1967), a judge who entered judgment following
trial had not realized, prior to entering judgment, that he was the owner of a
small number of shares of stock in one of the parties. Id This, too, was
sufficient to void the judgment entirely, despite the trial court’s lack of
knowledge of facts requiring disqualification at the time judgment was
2855932 18entered. Id.; see Christie v, 135 Cal.App.4th at 777 (summarizing these
holdings)
Nonetheless, as shown by the Superior Court’s actions here, the
scope and effect of Code of Civil Procedure Section 170.3(a)(4) remains
uncertain. And this is particularly true in the context of mandatory
disclosures under Canon 3(E)(2)(a) of the Code of Judicial Ethics This
Court should resolve this issue and provide guidance needed for litigants
and judges faced with disqualification issues.*
> Other cases have used Section 170.3(a)(4) to find an order by a
disqualified judicial officer non-void. In Bates v. Rubio's Restaurants, Inc.,
179 Cal.App.4th 1125, 1133 (2009), a trial court issued an order vacating a
+ prior ruling, and then separately concluded (on grounds that remained on
the record somewhat unclear) that the “interests of justice” prevented the
trial judge from participating in further proceedings in the matter. Id. The
Fourth District held that because the disqualification was not based on facts
that pre-existed the order vacating the prior ruling, Section 170.3(a)(4)
applied. Id. Similarly, in Hernandez v. Vitamin Shoppe Indus., Inc., \74
Cal.App.4th 1441, 1451 (2009), the First District held that an order issued
ata hearing where a judge was later found to have made intemperate
comments was not void; while the intemperate comments (as another trial
judge eventually found) created an impression of bias applicable to future
hearings, there were not pre-existing facts at the time of the hearing at issue
that would have supported disqualification, and thus the order was not void.
4 Moreover, because disqualification issues are reviewable only by writ,
this Court will have no opportunity to address these issues aside from on a
petition such as this one.
2s5s032 19Review Is Necessary To Clarify That Summary Judgment
Not Only Is Available To Determine Application Of The
Ministerial Exception, But That It Is A Preferred
Procedure
The Superior Court declined to rule on whether the ministerial
exception applies at all to DeCrescenzo’s claims, in whole or in part,
finding that because in some cases claims seeking to invoke the exception
‘may turn out to be “subterfiige” or not dispositive of certain claims, it was
not possible to decide the question on summary judgment in this case. In
so holding, the Superior Court failed to determine whether there in fact
were disputed material facts relevant to the criteria of what constitutes a
ster under established legal doctrine, or even to analyze what that
doctrine is. That was not only error, but error of grave constitutional
significance which is likely to recur absent intervention by this Court.
The trial court made no effort to analyze the undisputed facts in this
case showing that the ministerial exception applies. In effect, the court
ruled out summary judgment based on the ministerial exception because of
the mere possibility that the assertion of the defense might be a subterfuge
or not applicable to the torts alleged. This is clearly contrary to a wide
range of state and federal cases holding that determination of the question is
ultimately a matter of law, a rule that follows inexorably from the long
development of case law involving the religion clauses and the ministerial
2asse2 20: 5 enna anemia En
exception. See Hosanna-Tabor Evangelical Lutheran Church v. EEOC,
1532'S. Ct. 694 (U.S. 2012) (holding ministerial privilege applied as a matter
of law); Smith v. Raleigh Dist. of the North Carolina Conference of the
United Methodist Church, 63 F. Supp. 2d 694, 706 (E.D.N.C. 1999) (“The
applicability of the ministerial exception is a question of law for the
court.”).
Indeed, summary judgment is a “favored remedy” in cases involving
First Amendment considerations “because unnecessarily protracted
litigation would have a chilling effect upon First Amendment rights;”
hence, “speedy resolution of such cases is desirable.” Shulman y. Group W
Prods., Inc., 18 Cal. 4th 200, 228, (1998) (affirming summary judgment on
free speech grounds). The Courts' concern about the chilling effect of
protracted litigation in freedom of speech cases is even further heightened
-in cases involving the First Amendment's religion clauses, where “the very
Process of civil court inquiry into the clergy-church relationship can be
sufficient entanglement [with religion so as to violate the religion clauses).
Tis not only the conclusions that may be reached by [the court] which may
impinge on rights guarantecd by the Religion Clauses, but also the very
rocess of inquiry leading to findings and conclusions.” NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 502 (1979).
For these reasons, determination of the applicability of the
ministerial exception is a question of law to be decided by the Court. The
2858952 21trial court’s failure to do so violated the Church’s important constitutional
immunity, and the error should be corrected by this Court on writ review.
To be sure, as with the application of any constitutional provision,
application of the rules of law will turn upon the facts. Thus, in Hope
International University v. Superior Court, 119 Cal.App.Ath, 719, 730, the
court, while emphasizing the special importance of applying summary
judgment procedures to questions of the applicability of the ministerial
exception, found that in that case a genuine material issue of fact existed as
to whether the legal criteria for applying the exception existed. That is to
be sharply contrasted with the approach of the Superior Court here, which,
misapplying Hope, refused even to consider whether any such material
dispute existed or even to reference the applicable legal standards,
In short, the decisions below misapply and conflict with other
decisions concerning the applicability and importance of summary
Judgment procedures to determinations of the applicability of the
ministerial exception. Intervention by this Court is necessary to provide
guidance in this critical area of constitutional law, of core significance to all
California religious institutions.
1, The Development Of The Ministerial Exception
Doctrine
In 1871, the United States Supreme Court, applying federal common
law, held that matters internal to religious organizations “which concern{]
2855952 22theological controversy, church discipline, ecclesiastical govemment, or the
conformity of the members of the church to the standard of morals required
of them” are beyond the ken of judicial authorities, and that those who
participate in such religious bodies do so subject to the internal rules of
those bodies. Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-34 (1871); see
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115-16 (1952) (recognizing
that the Watson principle is mandated by the First Amendment); Maxwell v.
Brougher, 99 Cal.App, 2d 824, 826 (1950) (following and quoting Watson).
Watson and Kedroff were quoted and approved in the Supreme Court's
recent decision affirming the ministerial exception doctrine in Hosanna
Tabor v. EEOC, 132 S. Ct. 694, 704 (2012).
In subsequent cases, the United States Supreme Court made clear
that the judiciary is constitutionally incompetent to resolve disputes
conceming matters of religious doctrine or practice. Presbyterian Church
¥. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US. 440,
450 (1969) (a court may not “make its own interpretation of the meaning of
church doctrines”). These principles were summarized in Serbian Eastern
Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976), where the
Court held that courts may not involve themselves in “matters of discipline,
faith, internal organization, or ecclesiastical rule, custom, or law.” The
Milivojevich Court emphasized that matters of internal church discipline
were particularly ill-suited to civilian judicial review. 426 U.S. at 717
2355952 23(“questions of church discipline and the composition of the church
hierarchy are at the core of ecclesiastical concern”); accord Hosanna Tabor
365 USS. at__, 132 S. Ct. at 704 (discussing Milivojevich).
‘The ministerial exception derives from and is a specific application
of this long established doctrine prohibiting civil authorities from
interfering with matters of religious discipline, faith, internal organization,
or ecclesiastical rule, custom, or law. Hosanna Tabor 565 US. at__, 132
S.Ct. at 706; see also Alcazar, 598 F.3d at 673, and 627 F.3d at 1290-91
(en banc) (“[T]he ministerial exception derives from both the Free Exercise
and Establishment Clauses of the First Amendment”). The initial cases
arose when ministers attempted to invoke civil rights and employment law
statutes to challenge actions by their churches relating to their employment
or discipline. See, e.g., Catholic Charities of Sacramento, Inc. v. Superior
. Court, 32 Cal. ath 527, 543-44 (2004); Schmoll v. Chapman Univ., 70
Cal.App.dth 1434, 1442-44 (1999). “[T]he ministerial exception doctrine is
based on the notion a church’s appointment of its clergy, along with such
closely related issues as clerical salaries, assignments, working conditions
and termination of employment, is an inherently religious function because
clergy are such an integral part of a church’s functioning as a religious
institution.” Roman Catholic Archbishop of Los Angeles v. Superior Court,
131 CalApp.4th 417, 433 (2005) (emphasis added) (citing Werft v. Desert
‘Sw, Annual Conference, 377 F.3d 1099, 1101 (9th Cir. 2004). Allowing
2855032 24the state to intrude in such matters “results in excessive entanglement with
religion in violation of the establishment clause,” and “violate[s] the free
exercise clause” because “churches . .. must have power to decide for
themselves, free from state interference, matters of church government as
well as those of faith and doctrine.” Silo v. CHW Med. Found., 27 Cal. 4th
1097, 1106 (2002) (quoting Schmoll, 70 Cal-App.4th at 1442-43),
The ministerial exception “is robust,” precluding “any inquiry
whatsoever into the reasons behind a church's ministerial employment
decision, .” EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795,
801 (4th Cir. 2000), The exception “refers not only to the selection of
ministers but more broadly to “employment decisions regarding ministers.””
Alcazar, 598 F.3d at 674. Thus, within the exception’s reach are claims
related to “the functions which accompany such a selection [, including] the
determination of a minister's salary . . . and the duty he is to perform in the
furtherance of the religious mission of the church.” Bollard, 196 F.3d at
947. This is so because the ministerial exception “applies as a matter of
law across statutes, both state and federal, that would interfere with the
church-minister relationship” and “encompasses all tangible employment
actions.” Aleazar, 598 F.3d at 673, 674. Significantly, “a minister’s
working conditions . .. are part of the minister's employment relationship
with the church.” Werfi, 377 F.3d at 1103 (emphasis in original); Marc
Headley, v. Church of Scientology Intl, 2010 WL 3157064 at *5 (C.D. Cal.
2855032 25ey
7010). Thus, the ministerial exception applies to “any federal or state cause
of action.” Werfi, 377 F.3d at 1100 n.1.
‘The First Amendment considerations that underlie the exception
‘apply to virtually every aspect ofthe relationship between a church and its
clergy. Milivojevich, 426 U.S. at 713, Notably, the appropriateness of a
church’s disciplinary actions respecting a minister is beyond the cognizance
of the civil courts. 1d. at 717. “Constitutional concepts of due process,
involving secular notions of ‘fundamental fairness’ or impermissible
objectives, are therefore hardly relevant to such matters of ecclesiastical
cognizance.” Jd. at 715,
2 The Doctrine ies Broadly To Church Officials
=e Doctrine Applies Broadly To Church Officials
Courts recognized that the principles that underlie the doctrine are
not unique to the colloquial understanding of the term “minister,” and that
many religious workers perform important religious duties, and/or must
‘meet specific religious qualifications or criteria to hold their positions,
Accordingly, courts held that the ministerial exception applies to the
‘lationship of churches with such religious workers tothe same extent as it
does with the more traditional concept of “ministers.” “[t should be noted
that the term ‘ministerial exception’ is judicial shorthand, but like any
‘rope, while evocative, its imprecise. The ministerial exception protects
more than just ‘ministers’ ,
-” Rweyemamu, 520 F.3d at 206. As Judge
Richard Posner has observed, “the minister’s exception is better termed the
2855932 26“internal affairs doctrine” because ‘minister's exception’ is too narrow ...
-” Schleicher v. Salvation Army, 518 F.3d 472, 475 (7th Cir. 2008).
In Hosanna Tabor, the United States Supreme Court while declining
to adopt a bright line definition of a “minister,” signaled that the exception
has a broad sweep by applying it, as a matter of law, to a teacher at a
Lutheran school who taught six secular classes, but who accepted a
religious “call” and taught one religious course daily. In Alcazar, the Ninth
Circuit en banc also resisted providing a single definition, holding, again as
@ matter of law, that a trainee for the priesthood who spent most of his one
year performing secular tasks such as cleaning dishes nevertheless fell
within the exception.
The most commonly articulated test, adopted by California courts, is
whether the worker’s “primary duties consist of teaching, spreading the
. faith, church governance, supervision of a religious order, or supervision or
Participation in religious ritual and worship,” or “is important to the
spiritual and pastoral mission of the church.” Hope Int'l Univ. v. Superior
Court, 119 Cal. App.4th 719, 734 (2004) (quoting Schmoll, 70 Cal. App.4th at
1439); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703
(7th Cir. 2003) (applying exception to non-ordained press secretary whose
duties included outreach to community); see also Ross v. Metro. Church of
God, 471 F. Supp. 2d 1306, 1310 (N.D. Ga. 2007) (collecting cases
applying exception to musical director, organist, choir director, resident in
2455932 27hospital pastoral program, religion teacher at parochial school, nun, kosher
food supervisor, and director of religious education).
As the Court emphasized in Hosanna Tabor, any test cannot focus
‘on a mechanical calculation of how much of a minister's time is devoted to
his religious duties. The plaintiff in that ease spent only 45 minutes per day
Performing religious tasks, but the court cautioned, “{t]he issue before us,
however, is not one that can be resolved by a stopwatch.” Hosanna Tabor
v. EEOC, 1328. Ct. 694, 709 (2012). See also Alcazar, 627 F.3d at 1292
(minister in training claimed to spend most of his time performing manual
labor).” The ultimate question must be whether the employee's work “is
important to the spiritual and pastoral mission of the church.” Hope Int!
Univ. v. Superior Court, 119 Cal.App.4th at 734.
3. The Doctrine Applies Here
Here, DeCrescenzo’s testimony establishes that by any definition, her
‘work at the Church fell within what should have been an easy case for the
application of the ministerial exception, as a matter of law. DeCrescenzo
chose to devote her life to work for her religious order. She underwent
extensive training. For six years her responsibility was to ensure that Sea
Org members at the Church were properly performing their religious duties,
She conducted hundreds of investigations for management under-
performance or ethies violations, conducted sec checks hundreds of times,
and recommended remedial programs.
283593.2 28Later, during her time at the RPF, DeCrescenzo supervised the
provision of (and herself provided) auditing and confessionals,
DeCrescenzo’s own testimony irretrievably demonstrates that she was a
“mninister” within the meaning of the cases.
Despite this evidence, the Superior Court devoted exactly no
attention either to the cases defining the broad scope of the exception or to
the evidence demonstrating that DeCrescenzo easily falls within it. Instead,
the Superior Court found that the mere possibility that a minister’s status
was a “subterfuge” was enough to send the case to ajury. But that is
directly contrary to the purpose of the ministerial exception. ‘This Court's
review is necessary to clarify and explain that the privilege applies as a
matter of law.
CONCLUSION
This case presents the ideal vehicle to review both a pressing issue
of judicial administration and critical issues concerning freedom of religion
in California. This Court should accept review.
285593.2 29Dated: July 25, 2016 Respectfully submitted,
pe
Bert H. Deixler
KENDALL BRILL & KELLY LLP
Eric M. Lieberman
RABINOWITZ, BOUDIN, KRINSKY
& LIEBERMAN, P.C.
Attomeys for Petitioner
Church of Scientology Intemational
2855932 30